Breaking News: EEOC and DOJ Release DEI Guidance

On March 19th, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released two guidance documents focused on educating the public about “illegal DEI” in the workplace.   

The first Document is titled: What You Should Know About DEI-Related Discrimination at Work and the second document is titled: What To Do If You Experience Discrimination Related to DEI at Work

This guidance is much needed and is likely a response to the current litigation facing the Trump administration, who included scare tactics of fear, confusion and conflating all DEI as illegal. The guidance is not based on any new laws or Trump’s executive orders, but instead existing civil rights law that have been on the books since 1964. However, public and private sector organizations should review their DEI policies, practices, programs and personnel, to confirm any written content, goals, or statements do not show preferences or mandate quotas based on a protected class (e.g. race/ethnicity, gender).

This administration is encouraging and relying on whistle-blower employees to report “illegal DEI” violations.

Read below for the full guidance.

If you don’t have data all you have is an opinion.

What You Should Know About DEI-Related Discrimination at Work

Diversity, Equity and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits employment discrimination based on protected characteristics such as race and sex. Under Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.

1.  If I believe I’ve experienced discrimination related to DEI at work, can I file a lawsuit in federal court alleging a violation of Title VII without taking any other steps?

No. Before you can sue your employer in federal court for a violation of Title VII, you first must file a charge of discrimination (an administrative complaint) with the U.S. Equal Employment Opportunity Commission (EEOC). After you file a charge of discrimination with the EEOC, there are other steps in the administrative process that must be completed before you can file a lawsuit in federal court. To learn more about these steps, please visit:  https://www.eeoc.gov/what-you-can-expect-after-you-file-charge. Unless you timely bring an EEOC charge first, you cannot get a “right to sue” letter (also known as a “Notice of Right to Sue”) that would allow you to bring a Title VII claim in federal court.[1]

2.  If I believe I’ve experienced discrimination related to DEI at work, what federal government entity can help me?

If you are not a federal employee, you first need to file a charge of discrimination with the EEOC (an “EEOC charge”). This is true no matter what type of non-federal employer you work for (a private sector employer, or a state or local government employer). An EEOC charge is an administrative complaint. Unless you timely file a charge of discrimination with the EEOC first, you cannot get a “right to sue” letter (also known as a “Notice of Right to Sue”) that would allow you to bring a Title VII claim in federal court.[2]

The EEOC enforces Title VII against private sector employers with 15 or more employees, and the Department of Justice enforces the statute against state and local government employers.[3] For businesses and other private sector employers, the EEOC both investigates charges of discrimination against these employers and is authorized to bring a lawsuit against them. The EEOC can file a lawsuit after the agency has determined there is reasonable cause to believe that discrimination has occurred, and the agency is unable to resolve the matter through a process called “conciliation.”

For state and local government employers, the EEOC is responsible for investigating charges of discrimination against such employers. If the agency determines there is reasonable cause to believe that discrimination has occurred and the agency is unable to resolve the matter through conciliation, the EEOC then refers those charges to DOJ for potential litigation by the Department.

3.  What if I am a federal employee and have experienced discrimination related to DEI at work? What is the complaint process?

If you are a federal employee and believe your federal agency employer discriminated against you based on a protected characteristic as a result of, or related to, DEI, you first must contact an EEO counselor at your federal agency employer. Check out EEOC’s overview of the federal sector EEO complaint process for more details and steps.

4.  Do Title VII’s protections only apply to individuals who are part of a “minority group,” (such as racial or ethnic minorities, workers with non-American national origins, “diverse” employees, or “historically under-represented groups”), women, or some other subset of individuals?

No. Title VII’s protections apply equally to all workers. Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.[4] This has been the long-standing position of the EEOC and the Supreme Court.[5] 

The EEOC does not require a higher showing of proof for so-called “reverse” discrimination claims.[6] The EEOC’s position is that there is no such thing as “reverse” discrimination; there is only discrimination. The EEOC applies the same standard of proof to all race discrimination claims, regardless of the victim’s race.[7] 

5.  Are only employees protected from DEI-related discrimination at work?

No.  Title VII protects employees, applicants, and training or apprenticeship program participants.[8] Title VII also may apply to interns. Depending on the facts, interns may be covered as employees, as applicants, or as training program participants.[9]

A charge of discrimination may be filed with the EEOC by any person claiming to be aggrieved. Additionally, a charge can be brought on behalf of an aggrieved person by a third-party, such as an organization. Finally, a Commissioner of the EEOC may bring a charge.[10]

6.  Are only employers “covered entities” under Title VII, that is, entities which must comply with Title VII’s prohibition on discrimination?

No. Title VII applies to employers with 15 or more employees; employment agencies (including staffing agencies); entities which operate training programs (including on-the-job training programs); and labor organizations (like unions).[11]   Employers can be liable for the actions of their agents (including recruiters and staffing agencies).[12]

7.  When is a DEI initiative, policy, program, or practice unlawful under Title VII?

Under Title VII, an employer initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.[13] 

Among other things, Title VII bars discrimination (“disparate treatment”) against applicants or employees in hiring, firing, compensation, or any term, condition, or privilege of employment.[14] The prohibition against discrimination applies to a wide variety of aspects of employment. In order to allege a colorable claim of discrimination, workers only need to show “some injury” or “some harm” affecting their “terms, conditions, or privileges” of employment.[15] The prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment in:

• Hiring;[16]
• Firing;[17]
• Promotion;[18]
• Demotion;[19]
• Compensation;[20]
• Fringe benefits;[21]
• Access to or exclusion from training[22] (including training characterized as leadership development programs);[23]
• Access to mentoring, sponsorship, or workplace networking / networks;[24]
• Internships (including internships labeled as “fellowships” or “summer associate” programs);[25]
• Selection for interviews,[26] including placement or exclusion from a candidate “slate” or pool;
• Job duties or work assignments.[27]

Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities.[28] This prohibition applies to employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups.[29] In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.[30]

Unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.[31]

Employers instead should provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.”[32] Employers also should ensure that “employees of all backgrounds . . . have equal access to workplace networks.”[33]

8.  Can an employer excuse its DEI-related considerations of race, sex, or another protected characteristic, provided that the protected characteristic wasn’t the sole or deciding factor for the employer’s decision or employment action?

No. For there to be unlawful discrimination, race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employer’s employment action or the “but-for” (deciding) factor for the action. An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.[34]

9.  Can an employer justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in “diversity,” including preferences or requests by the employer’s clients or customers?

No. Employers violate Title VII if they take an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.[35] Title VII explicitly provides that a “demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination.”[36] 

In particular, client or customer preference is not a defense to race or color discrimination.[37] Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination. Employment decisions based on the discriminatory preferences of clients, customers, or coworkers are just as unlawful as decisions based on an employer’s own discriminatory preferences.[38]

Title VII allows employers to raise a bona fide occupational qualification (BFOQ) as an affirmative defense in very limited circumstances to excuse hiring or classifying any individual based on religion, sex, or national origin. The exemption applies where religion, sex, or national origin is a bona fide occupational qualification “reasonably necessary to the normal operation of that particular business or enterprise.” However, this very limited carve-out for BFOQ excludes race and color.[39]  

Title VII does not provide any “diversity interest” exception to these rules. Nor has the Supreme Court ever adopted such an exception. No general business interests in diversity and equity (including perceived operational benefits or customer/client preference) have ever been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.[40]

10.  Can an employer’s DEI training create a hostile work environment?

Title VII prohibits workplace harassment, which may occur when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics. Harassment is illegal when it results in an adverse change to a term, condition or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.[41] 

Depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context. In cases alleging that diversity trainings created hostile work environments, courts have ruled in favor of plaintiffs who present evidence of how the training was discriminatory (for example, in the training’s design, content, or execution) or, at the motion-to-dismiss stage, who make plausible allegations that explain how the training was discriminatory.[42]

11.  Does Title VII protect employees who oppose unlawful policies or practices, including certain DEI practices or trainings?

Title VII prohibits employers and other “covered entities” from retaliating because an individual has engaged in protected activity under the statute.[43]  Generally, protected activity consists of either participating in an EEO process (such as an employer or EEOC investigations or filing an EEOC charge) or opposing conduct made unlawful by Title VII. Depending on the facts, protected opposition could include opposing unlawful employment discrimination related to an employer policy or practice labeled as “DEI.”.[44]

As previously noted by the Commission, courts have held that opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.[45]  

What To Do If You Experience Discrimination Related to DEI at Work

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics such as race and sex. Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees are harmed. Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes.   

Before you can sue in federal court, you first must file a charge of discrimination with the EEOC.  The U.S. Equal Employment Opportunity Commission (EEOC) investigates charges of discrimination and can file a lawsuit under Title VII against businesses and other private sector employers.  The Department of Justice can file a lawsuit under Title VII against state and local government employers based on an EEOC charge, following an EEOC investigation. 

What can DEI-related discrimination look like?

Diversity, Equity and Inclusion (DEI) is a broad term that is not defined in the statute. Under Title VII, DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s race, sex, or another protected characteristic. In addition to unlawfully using quotas or otherwise “balancing” a workforce by race, sex, or other protected traits, DEI-related discrimination in your workplace might include the following:

Disparate Treatment

DEI-related discrimination can include an employer taking an employment action motivated (in whole or in part) by race, sex, or another protected characteristic. Title VII bars discrimination against applicants or employees in the terms, conditions, or privileges of employment, including

• Hiring
• Firing
• Promotion
• Demotion
• Compensation
• Fringe benefits

• Exclusion from training
• Exclusion from mentoring or sponsorship programs
• Exclusion from fellowships
• Selection for interviews (including placement on candidate slates)

Limiting, Segregating, and Classifying

Title VII also prohibits employers from limiting, segregating, or classifying employees based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. Prohibited conduct may include:

• Limiting membership in workplace groups, such as Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups
• Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources

Harassment

Title VII prohibits workplace harassment, which may occur when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics. Harassment is illegal when it results in an adverse change to a term, condition or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive. Depending on the facts, DEI training may give rise to a colorable hostile work environment claim.

Retaliation

Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, such as objecting to or opposing employment discrimination related to DEI, participating in employer or EEOC investigations, or filing an EEOC charge. Reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.

Who can be affected by DEI-related discrimination?

Title VII protects employees, potential and actual applicants, interns, and training program participants. 

What should I do if I encounter discrimination related to DEI at work?

If you suspect you have experienced DEI-related discrimination, contact the EEOC promptly because there are strict time limits for filing a charge. The EEOC office nearest to you can be reached by phone at 1-800-669-4000 or by ASL videophone at 1-844-234-5122.   For more information on how to file a charge, visit: How to File a Charge of Employment Discrimination | U.S. Equal Employment Opportunity Commission.